SHAISTA ARSHI Versus CHAIRMAN, UNION COMMITTEE, WARD NO. 48 LAHORE
ORDER
This petition under Article 199 of the Constitution by Shaista Arshi, petitioner, has arisen in the following circumstances. The petitioner was married to Ch. Muhammad Javed, respondent, on 6‑1‑1985 according to Hanfi Law. Unfortunately for the parties, the marriage did not prove a success and as a result of negotiations between the petitioner's parents and Ch.Muhammad Javed, respondent, and his parents, "it was settled that respondent No.2 would divorce the petitioner and all the belongings like 'Jahez' etc. would be returned. 11 Accordingly on 30‑1‑1987, Ch. Muhammad Javed executed a Talaqnama, divorcing the petitioner. As the petitioner belonged to Lahore, it was left to her to give notice of the Talaq to the Chairman concerned under the Muslim Family Laws Ordinance, 1961. This the petitioner did on 10‑2‑1987, but before the expiry of 90 days and before the Talaq could become effective in terms of section 7, subsection (3) of the Muslim Family Laws Ordinance, 1961, the respondent on 8‑5‑1987 sent a telegram to the Chairman "intimating him that he wanted, rather he had withdrawn the notice of "Talaq".
2. Simultaneously, Ch. Muhammad Javed, respondent, instituted a suit for perpetual injunction at Multan restraining the Chairman from continuing with the Talaq proceedings; he also instituted a suit for restitution of conjugal rights in the Family Court at Multan.
3. The petitioner's case is that according to Hanafi Fiqah, the Talaq had become "complete and binding and cannot be revoked to make it a farce" .
4. The petitioner, therefore, seeks to have it declared that the "Talaq" is complete under the terms of "Hanafi Fiqah", and as a result respondent No. 1 (Chairman Union Committee Ward No. 48, Allama I Iqbal Town, Lahore) be directed to complete the "Talaq" proceedings and to issue the certificate of "Talaq" as is required under section 7 of the Family Laws Ordinance, 1961".
5. It will be seen that there is an apparent inconsistency in the petitioner's case. On the one hand, she wants it to be declared that the Talaq has taken effect under the Hanafi Fiqah and on the other hand, she wants the Chairman to continue the proceedings 'under section 7 of the Muslim Family Laws Ordinance, 1961, which Ordinance, by its section 7, subsection (3), says that "a Talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman".
6. Learned counsel for the petitioner referred to Mulla's Mahomedan Law (Pakistan Edition, 1983 by Mian Jamil Ahmad Advocate, paragraph 311, to point out that Hanafis recognize what is known as Talaq‑i‑badai as a valid Talaq and that such a Talaq takes effect immediately it is pronounced, though it may be pronounced but once. According to him, the provisions of section 7 of the Muslim Family Laws Ordinance,' 1961, being inconsistent With the Hanafi Law on the subject, are not binding upon the petitioner, and the result produced is that the Talaq given by Ch. Muhammad Javed, respondent, on 30‑1‑1987 had become irrevocable.
7. If I may say so with respect, the law governing divorce is not as it is stated to be in Mulla's Mahomadan Law but as is laid down in the Holy Quran in Soorah 2:229 and the Sunnah of the Holy Prophet (P.B.U.H.). That is why the Constitution in its various Articles, including Article 2‑A read with the Objectives Resolution reproduced in the Annexure, refers to the Injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet (P.B.U.H) and not to the law as may be found to be stated in the textbooks, on the Islamic Law, containing the views of different Schools of thought.
8. Then, it is well‑settled and in ‑this behalf it will be sufficient to refer to the observations of the Supreme Court in B.Z..Kaikaus and 10 others v. President of Pakistan and 15 others P L D 1980 SC 160 and 175 that "which school of thought is to be followed in and by Pakistan and to what extent and in which matters in the process of "Islamisation of Laws" is the job of the concerned Legislature to decide, though it may be pointed that according to the trend of the case law, so far developed in Pakistan, opinions have been expressed that it is not necessary to stick to the view of the traditionalists, if the context of the Holy Quran and the Sunnah is clearly to the contrary on any particular point".
9. As observed above, the fundamental law on divorce is contained in Soorah 2:229. Learned counsel for the petitioner agreed that there was difference of opinion among the different Schools of thought on its interpretation and that there are Schools of thought which do not recognize the Badai form of Talaq as is recognized by the Hanafis. Section 7 of the Muslim Family Laws Ordinance, it appears, is based upon the interpretation of Soorah 2:229 as adopted by the Sunnis other than the Hanafi School of thought. The principle on which the Courts proceed in such matters, it seems to me, and this is clearly deducible from Nek Bakht v. The State P L D 1986 F S C 174 is that where the legislature has adopted a certain juristic view of a Quranic provision, the Court is to take the law as it is enacted; in such a case, if the law as enacted is clear and free from ambiguity, then all that the Court can do is to enforce it. Indeed, if there is an ambiguity, then the Court must have recourse to the relevant Quranic provision, that being the primary source of the law and if necessary call in aid the views of the different savants on it.
10. Here, Ch. Muhammad Javaid, respondent, was within his right recognized by section 7 of the Muslim Family Laws Ordinance, to revoke the divorce before the expiration of ninety days and thus to prevent it from becoming effective. No question, therefore, arises. Of the Chairman being directed to act contrary to section 7. The petition is dismissed in limine.
M.B.A./S‑237/L Petition dismissed.